A Landmark Case:
Making the Case for a Viable Fetus in a Missouri Wrongful Death Claim
The Case that Changed the Law in Missouri, in 1983
“To say that the unborn, viable fetus represents only the potential for life is a misnomer because actually it is the potential for continued life.” – Jim Bartimus
When Terri O’Grady checked herself into St. Joseph’s Hospital—across the state line from where she lived in Kansas—her life was irrevocably altered. Not only was she to receive negligent medical care that would re
sult in the stillborn birth of her baby, but Missouri had a Wrongful Death Act that was fundamentally different from that of Kansas, and it would not allow her to sue the medical professionals for the wrongful death of her baby, nor to collect damages resulting from its tragic death. The reason for this being, a viable fetus which was injured and died before birth was not recognized as a “person’ within the meaning of Missouri’s Wrongful Death Statute, and therefore, there was no “cause of action” –meaning no legal ability to pursue a wrongful death claim. Legal precedents for this were 2 landmark cases: Roe v. Wade in 1973 and Hardin v. Sanders in 1976. Among other things, Roe v. Wade stated that a viable fetus was not a “person,” and therefore, was not deserving of the protection of the 14th amendment. [No state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws.] Hardin V. Sanders found no legislative intent to include recovery for the death of an unborn fetus. However, if a viable fetus was injured before birth, born alive and then died –that was an entirely different matter. For in order to recover for wrongful death, there had to be a “breath of Life.” Without that, viable or not, a fetus was not considered to be a person. Criminal acts against a fetus or a mother had a legal remedy, as did matters of property and inheritance. But actual negligent acts against a fetus resulting in its stillborn death – well, that was entirely another matter. Or so it was in Missouri 1980 according to case law and Missouri’s own Wrongful Death Statute. Jim Bartimus took this case with the intent to change the law in Missouri, and that is exactly what he did.
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